Lawfare Daily: Trials of the Trump Administration, May 30

[Intro]

Benjamin Wittes: It is The Lawfare Podcast. I'm Benjamin Wittes, Lawfare’s editor-in-chief, with Lawfare senior editors Scott R. Anderson, Anna Bower, and Roger Parloff.

On May 30, before a live audience, it was “The Trials of the Trump Administration.” We discussed the two court ruling finding President Trump's tariffs to be unlawful under the International Emergency Economic Powers Act. We talked about the Supreme Court allowing Trump to end humanitarian status for some migrants, updates in litigation against DOGE, and so much more.

[Main podcast]

Hey folks, welcome to the second of this week's Lawfare Live, “Trump's Trials and Tribulations” edition. We had the first on Wednesday where we covered a lot of materials. So if you think there's a case we haven't talked about today don't panic—go back to YouTube to Wednesday's show, we probably covered it there. We broke them up because we are just overloaded with subject matter material to go over and we couldn't do it in one show. So we figured this was the week we were gonna slice 'em in two, and we reserve the right to do that in the future.

Thanks to everybody who wrote to me with suggestions regarding how you think, how you think we should arrange Lawfare Lives in the future. I am going through all of those responses. As I said on Wednesday, I will not be responding individually to notes, but I am reading them all and I really appreciate the number of thoughtful responses that we got to that request.

I am joined by the estimable Scott Anderson. Hello, Scott. Do you have an announcement of your own for today?

Scott R. Anderson: I, I don't believe I do.

Benjamin Wittes: Oh, I thought you did. I thought you had something you wanted to flag for everybody.

Scott R. Anderson: It relates to some of the cases we're talking about, so I'll do it then.

Benjamin Wittes: Okay. So we're gonna, I got ahead of myself. I thought we were gonna take care of all the announcements here. As you can see, this is unscripted.

From the Sconce Studio, it's the estimable Roger Parloff.

Roger Parloff: Thank you. Good to be here.

Benjamin Wittes: And we are joined by the administrator of DOGE herself, Amy Gleason. No, no, you have to say something or you don't show up.

Anna Bower: Oh, right, I forgot. This isn't, this is indeed an audio, an audio forward show. Yes, it's me. I'm here. Amy Gleason, the alleged acting administrator of DOGE.

Benjamin Wittes: Nope, it's actually Anna Bower.

Anna Bower: It's actually Anna Bower.

Benjamin Wittes: Who is coming down off of the DOGE, the WITAOD high. We will be discussing her WITAOD piece a little bit later in the show.

Alright, let's get started. It's—quite a week has gone by in the last 48 hours, but we would be remiss, Scott, if we did not start with IEEPA because you so rarely get the opportunity to say that. This morning on the show, on on Dogshirt TV with Anna, we got to play with the name FACA, the Federal Advisory Committee Act.

Scott R. Anderson: That’s another favorite.

Benjamin Wittes: And today, this, this afternoon we get IEEPA. So, big, big decision from a court that very seldom issues big decisions—the Federal Court of Trade immediately stayed by the Federal Circuit Court of Appeals, all involving tariffs. As they say, what's going on?

Scott R. Anderson: Well, this is a day that people who are sanctions nerds, and particularly nerds about IEEPA, which is the International Emergency, Emergency Economic Powers Act of 1977, the super broad delegation of authority over regulating foreign economic transactions in circumstances of emergency that the president uses for sanctions and all sorts of other things, and President Trump has used to impose a lot of his tariffs over the last few months.

It got, actually got not one but two judicial decisions, both invalidating the full scope of tariffs that President Trump has brought in. And it's particularly interesting A) 'cause IEEPA is a law that doesn't get a lot of attention from the courts, and what attention it gets tends to favor the executive branch, so it's pretty unique and exceptional that we've seen this sort of pushback from two courts the same week, no less. But it's particularly interesting 'cause the two opinions reach the same outcome but are actually entirely mutually exclusive. There is no universe where they can both be correct. So it tees up a circumstance where it seems almost certain the Supreme Court's going to have to resolve this, although maybe they don't want to, if it's a tricky enough case.

The first decision we had was from the Court of International Trade, a specialized trade court in, based in New York, I believe, that appeals to the Federal Circuit, as you noted, Ben. They actually skipped over and had denied a TRO a few weeks ago, which a lot of people took initially as kind of a bad sign, but they went ahead and jumped over the idea of a preliminary injunction and went straight to summary judgment, and basically reached a final determination on this question of whether these tariffs are legal and determined—quite firmly, no, in fact they weren't.

And they did so on a lot of different grounds. They essentially looked at the statute of IEEPA and they said, because of the history of IEEPA, because of its relationship to the Trade Act of 1974 and the Trading with the Enemies Act that preceded it, and the relationship between those, it was pretty clear in their view that Congress had not intended to give the president broad authority to impose whatever tariffs he wants, even in ways that don't meet the requirements of Trade Act in 1974 in doing so, and on that grounds, it ruled that the president's worldwide tariffs were unlawful.

And on the specific tariffs regarding China, Mexico, and Canada relating to fentanyl trafficking, opium trafficking, unlawful immigration— for all those measures, it looked at the actual measures imposed, and particularly the tariffs nature of the measures and the national emergencies. President Trump had relied upon and said, these don't line up. This is not a proper sort of response you would expect a sort of a national emergency. And therefore it's not clear what the president is doing is in response to this emergency as IEEPA requires.

It's a pretty notable, notable step, that particular point 'cause it's the sort of thing that courts usually don't like to do, to second guess the president on what's necessary for national security. And then the court went even further and said, oh, by the way, this all raises a big constitutional question—if you were actually to take the president's argument on its face and say that this authority allows the president to impose whatever tariffs he wants, whatever he wants on whoever he wants—which is more or less what the government was arguing—that raises non delegation doctrine and major questions doctrine, the kind of new permutation of the non delegation doctrine question, basically saying Congress has delegated too much unrestricted authority to the president.

On those grounds, it did say all these tariffs are invalidated, but was almost immediately administratively stayed by the Federal Circuit. I wouldn't take that as a sign of the actual merits on the part of the Federal Circuit; remember, the Court of International Trade also denied a TRO and yet obviously did eventually feel that the plaintiffs had a very valid argument.

In this case, I think it's more a sign the federal circuit wants to hear it out and doesn't wanna disrupt the president's policy even temporarily until it actually hears the merits of the case and determines if there's something to this. But this issue has been stayed for the time being and all those different grounds for invalidation.

But the next day, actually slightly after the administrative state had come down from the federal circuit, a federal district court in Washington, D.C. reached much the same conclusion saying these tariffs are categorically invalid. This is from Judge Contreras, and he actually did so on much kind of cleaner grounds, although ones with much broader implications. He looked at the same trade act in 1974 argument, a similar permutation of it and the legislative history of IEEPA and the legislative text, and reached the same conclusion as the court of international trade did, but it went even broader. He basically said IEEPA just doesn't allow the president to impose any tariffs whatsoever. It's clearly a toolkit that is only allowed through the specialized authorities Congress has laid out, not through IEEPA itself, and therefore I don't need to get to all these other arguments, that's enough, there's no basis for this.

Now, he did this as a preliminary injunction, meaning he's not reaching the final merits. It was just the likelihood of success of the parties. He also determined that the plaintiff in that case, unlike in the cases before the Court of International Trade, were likely to be faced irreparable harm because they said essentially we were going to have to fold if we have to deal with these tariffs much longer, and on that basis, he then enjoined the tariffs.

As far as I know, that is still in place, the, the preliminary injunction. It has been appealed to the D.C. Circuit, but we haven't actually seen a decision come down. The reason why these are mutually exclusive, which is really, really interesting, is that the Court of International Trade has jurisdiction by virtue of Congress having given it exclusive jurisdiction over disputes arising from laws authorizing tariffs.

So whether the Court of International Trade has authority or not, or has jurisdiction or not, hinges on whether you interpret IEEPA as authorizing tariffs or not. So if the Court of International Trade is correct that it does authorize tariffs, well then it has jurisdiction. If Judge Contreras is right and it doesn't authorize tariffs, well, then any district court in the country can have jurisdiction. That's usually how we see IEEPA challenges pursued—it's through the regular process.

Benjamin Wittes: And let me stop, lemme stop you right there. Oh yeah, please, Scott, because there's a third possibility, which is neither of them are right. Which is the possibility, A) urged by the executive branch, and B) toyed with by Jack Goldsmith on the Executive Actions, Executive Functions blog. Do you have a thought? Have you read Jack's post and do you have thoughts on his critique of these two opinions?

Scott R. Anderson: No, I haven't read Jack's post, so I don't know. The executive branch has not argued that. The executive branch argued quite firmly this should be entirely in the Court of International Trade. Now, would they go so far to say all IEEPA actions have to be in the Court of International Trade? That's the open question. Can you read the law—

Benjamin Wittes: No, no, but they contend A) Contreras is wrong that it can be anywhere but the Court of International Trade and B) the Court of International Trade is wrong on the substance.

Scott R. Anderson: That that is correct, yes. That is correct. It has to be in the Court of International Trade 'cause it relates to tariffs. What they don't address, I don't believe, I think they may—oral argument they may have suggested this isn't necessary—is whether this means all IEEPA actions have to be brought in the Court of International Trade.

Remember, IEEPA has had hundreds of challenges over the last 40 to 50 years of which it's been around, most of which arise in lots of different district courts around the country. Lots of courts, circuit courts, have precedents about it. The Court of International Trade, as far as I know, I don't think it's ever heard IEEPA challenge before. So it'd be kind of interesting to say, oh, by the way, all this circuit court precedent, which is most of the law in IEEPA, is out of the woods now, now we actually, all, everything has to go through the Court of International Trade, that might be an implication of what's being implied here.

I will admit that I find both courts' arguments somewhat persuasive on a, a variety of fronts. But the idea that the IEEPA doesn't authorize any sort of tax gathering measure it, you know, it, it's all, its statutory interpretation, there's a lot of gray area here. If you think the courts are really inclined to be highly deferential to the executive on how the statute's gonna be interpreted, and it's a very open-ended statute, then you would say in terms of its plain language, then yeah, I could see stretch.

But the legislative history is not a convenient one. Congress enacted this right after they enacted a Trade Act, and the Trade Act was in direct response to actions the Nixon administration took that installed tariffs almost under almost identical language because Congress was worried about the Nixon administration doing it. They adopted a law authorizing similar measures, but with more clear restrictions, and then they took the same language and put in IEEPA later.

If you were to follow the government's line of argument, you'd have to be concluding that Congress did one thing in 1974 or 75 when the Trade Act was enacted, and then immediately reversed itself two years later with IEEPA and rendered everything else that already put on the books implicitly revoked, or if at a minimum, basically non-functional, at least outside the case of emergencies or in the case of emergencies by virtue of allow an opt-in IEEPA that authorized all the exact same things.

I do think that's a problematic reading of statutory intent. The real question is, is this something you're gonna hang your hat on the plain language of the statute in your deference to the president or on the intent of Congress as informed by the broader legislative history, classic judicial methodology question? There's no right, right or wrong answer to that. It's about the judges and how they think about their roles.

Benjamin Wittes: Alright, so where do we—what is the status of the tariffs now? If you're a ship that's today docking at the Port of Los Angeles and the, the tax man boards the ship and says, I get X amount of duties for this cargo, do you pay it or not?

Scott R. Anderson: You know, well, I think you pay it if they ask you to pay it, but maybe you sue later to try and get your money back. My understanding is that these are, should, should be enjoined right now. I have not seen anything invalidating the preliminary injunction I issued by Judge Contreras, which I think is still in place. Now, I have no doubt that's something they're asking for the D.C. Circuit. The D.C. Circuit docket I haven't been able to find, at least in Courtlistener yet, they just went through—-oh, I see somebody saying here, maybe Contreras stayed his own PI. That may be right. I'll, I can go back and check that in a second. So maybe that's why they're stayed, and they haven't pursued an administrative stay from the appellate court.

But, you know, regardless these things are on the, on the—what's the word I'm looking for—on the ropes in terms of their legal standing. We'll have to see where the appellate court will resolve this. And it's worth noting the D.C. Circuit, because they're appealing for PI, I believe, is gonna go through the May motions panel, which is going to be if I recall correctly, I think it's Henderson, Henderson Childs and Judge, who was it, Walker, if I recall correctly, which is kind of the most recent of this 2:1 Republican to Democratic appointee series of motions panels we see in the D.C. Circuit. Ends on Monday, I suppose, 'cause of the weekend in which case you would get different panel, but I think it'll be before that panel.

I don't think that necessarily cuts one way or the other in this case. I don't think this is one where a partisan valence is likely to matter nearly as much as in certain other cases. But that is the panel that's gonna end up hearing that's in the D.C. Circuit.

Benjamin Wittes: Alright. I just have a prediction for you people. We are about to see, to experience a behavior among shipping, contain container ships that has never before been seen in human history, which is the shipping container, the container ship version of a plane in a circling pattern, which is these ships are gonna start going in big circles, waiting for a stay, and then all come and dock at the same time. So they get in there when there, when there, they make sure there is no stay extant and they can take advantage of these decisions.

Scott R. Anderson: You, you heard it here first. Two notes, folks in the chat point out 14 days stay from Contrera. So we'll have two weeks for the D.C. circuit to clarify. Otherwise, they'll come back in a day. So they may just have to circle for two weeks. Most ships have enough fuel on board if they need to do that if they're anxious to it.

The third thing I would point out is there is actually another shoe may, may yet be yet to drop most of the different challenges of the IEEPA-based sanctions that have popped up—pardon me, the IEEPA-based tariffs that have popped up around the country, have on the government's motion, been transferred to the Court of International Trade. D.C. was one exception. There is one other exception that's in the Northern District of California, so we may yet get another decision there, which will set up a third avenue to appeal to the Supreme Court through the Ninth Circuit.

Benjamin Wittes: All right. So goods are not the only thing that come into the United States. The other thing are people, and as with goods, the Trump administration is trying to stop the people from coming in, which is why we have lots of cases with the initials of three letters.

Roger let's start with—it's a four letter case—CHVS in the Supreme Court. Big action affecting, you know, only half a million people or so. What, what did the Supreme Court do today?

Roger Parloff: Yeah, this is called Noem v. Svitlana Doe formally. We've called it CHNV, I'll tell you why in a second.

But it does, yeah, it involves 530,000 aliens who had, Kristi Noem tried to cut off their—they, they were in a program called a humanitarian parole program. They all entered the U.S. legally through a program where they were checked out beforehand through this humanitarian program, and it grants parole for two years. Usually you're coming from countries where something horrible is happening. And so these are people from Cuba, Haiti, Nicaragua, and Venezuela. And so that's how we get CHNV And Kristi Noem tried to cut that off all at once, just revoke that program and they would've all become undocumented, unemployable, and removable.

As of April 24, a judge stopped that, and the Ninth Circuit refused to stay her ruling. And today the Supreme Court did stay her ruling, which means that all of those people are undocumented, unemployable, and subject to mass expulsion.

Benjamin Wittes: Can I, can I ask a quick question about that? Usually when you end TPS, you announce a date and you say we're not renewing the TPS grant for X country for issued on such and such a day, and that gives people an orderly time in which to depart the country or for those who can maybe have gotten married or something changed their status.

Have they really just flipped it off and said, you're now all undocumented aliens, or is there some more orderly process and vision for—I mean, it's literally half a million people.

Roger Parloff: My understanding is they've literally flipped it off. And, and that's what the plaintiffs called it, the largest mass illegalization event in modern American history. And, you know, it's, it's, this was foreshadowed by what the Court did in the National TPS case about a week ago. It did almost the same thing. There was one noted dissent there, Justice Jackson; here were two noted dissents here, Jackson with Sotomayor joining her.

And I, I assume that part of the problem is that legally it, it just doesn't look good in terms—nobody has tried this before, but you know, this there isn't anything that seems to clearly prevent it. And Jackson's point is not the merits of the case, it's what you usually do when you're judging a stay order, you know, originally to get the injunction, you have to show irreparable harm. The plaintiffs have to show it, and then once you get it, it flips.

If you're gonna stay that, in this case, the, the government would have to show some sort of irreparable harm. And here there's no, you know, the, the First Circuit has not heard the case yet, but the I think both parties were asked—the plaintiffs were willing to have expedited appeal, all you had to do was to wait for that ruling, and, and on the other side of the scale, it was 500,000 people being thrown into a catastrophic turmoil.

And and, and she wrote, I’ll see if I have it: the court has plainly botched this assessment today. It requires next to nothing from the government with respect to irreparable harm, and it undervalues the devastating consequences of allowing the government to precipitously upend the lives and livelihood of nearly half a million non-citizens while their legal claims are pending. While it is apparent the government seeks a stay to enable it to inflict maximum pre-decision damage. Court ordered stays exist to minimize, not maximize harm to litigating parties.

So, she was upset, but that is that is where we are.

Benjamin Wittes: And she had one other vote on that opinion, right?

Roger Parloff: Yeah. And we, there are other people here through parole decisions 76,000 Afghans came in that way in 2021, 20,000 Ukrainians came in that way in 2022. I don't know if, what Kristi Noem thinks about them.

Benjamin Wittes: Well, there are a lot more than 20,000 Ukrainians here on some form of temporary protected status. They have their own parole program called U4U, but it's essentially the same thing. And so I, I think it's probably about 400,000 Ukrainians.

Roger Parloff: Oh, okay. And I think that when you, I think that when you come in on parole, then you are allowed to apply for other ways of staying here, asylum and, and TPS. But Noem made an effort, you know, to cut off those applications too, to say, you know, in midstream to, to interrupt that process. So, this is a pretty, pretty dramatic.

Benjamin Wittes: Yeah, it's a big deal. I will just foot stomp one point that Roger made and add one other little thing. The other little thing is, you know, TPS is a discretionary grant by the executive branch and so, you know, whether they can turn it, you know, they kind of turn it on at the president's discretion and that really does suggest that ultimately they can turn it off at the president's discretion. And so my guess is that the seven justices who are inclined to stay this or are, are really saying come on, you know, you're, you, you, you're here at the grace of the president. The president—what the president giveth the president can take it away. And I'm honestly not sure that's wrong as a matter of law, although it's being done in a particularly awful way.

The second point that is one that you, you know, you're, you're, you're talking here about when, when Trump and Vance talk about, you know, deporting people, they're talking about, they purport to be talking about illegal aliens, right? People who came here illegally. Nobody who's here on TPS came here illegally. They came here because there was a program to temporarily shield people from their countries, from a particularly dire circumstance. And to sort of suddenly flip a switch and turn them all into undocumented aliens is a kind of a dirty trick, you know, particularly when you do it at scale like that.

Roger Parloff: To be, to be clear, this is parole, not TPS, but they, they did go through an individualized process after the, you know, after the judge, I mean, after the president designates the country, creates this program, there is an individualized process to make sure you don't have crimes and so on.

Benjamin Wittes: All right. Let's talk about Mahmoud Khalil, who's had a, had a busy week.

Roger Parloff: Yeah, he, he is still in prison which is—he was arrested, remember I think March 8. He's a Columbia grad student, Palestinian—or participated in the Palestinian protest—a green card holder, lawful permanent resident. And unlike like, Rümeysa Öztürk, or Mohsen Madawi, or Badar Khan Suri or Efe Ercelik, and Mohammed H., he has not yet gotten out of jail.

So, this is a 106 page ruling that still doesn't get him out of jail. It's by Michael Farbiarz in the, in the district of New Jersey. He's issued several other rulings already. He found that jurisdiction was proper; that was 67 pages. He found that he had jurisdiction; that was 108 pages. This one is 106 pages. It's a very, you know, there are things about it that are interesting and, and good maybe, but it's strangely written. It's got and the final conclusion is that this statute, you know, Rubio's invoked for him as for many of people, that provision of, of law that permits him to find a, that the, the alien will compromise a compelling foreign policy interest, and he finds that that's void for vagueness as applied to Khalil, which is potentially significant and ruling that could be a precedent for others.

But he still doesn't release him because apparently there are two. After they arrested him for this they, they came up with a second reason, which was they, they alleged that he was said, put something inaccurate on his application for I don't know if it was for entry or for, for citizenship. And, the, he, he, Farbiarz finds that his—Khalil's—lawyers didn't address that question yet, so he's going to hold him on that question. I, I think that Farbiarz, lawyers had taken the position that both of these things were void, in part because they are retaliation for First Amendment speech. That they would, you know, the second one is a pretense, the first one—well, they, they're both pretenses to punish him for his protected First Amendment activity in the protests.

But there is a, at some point in this opinion you, at some point you begin really wondering about the judge’s diagnosis mentally. There's something sort of OCD, like about, there's sort of a maniacal discussion of definitions after definitions and, and discussing every case that's been decided on vagueness. There, there is interesting stuff about where that, you know, that provision that Rubio invoked comes from and the legislative history of it, and in almost every case it's been used apparently it's for people that have done something abroad that has some sort of obvious impact on foreign affairs.

You know, like somebody who is, has been charged with crimes in his country that are very significant and, and it's almost like extradition, the usage, you know, when a secretary of state will say we, we need to remove this person because of the foreign policy effect. It says that one of the—

Benjamin Wittes: Like a former president of a country, right?

Roger Parloff: Yeah, yeah. It's, it's exactly that. And in fact, one of the issues that came up when Congress created this law was the, the Shah, you know, the Shah was allowed to come to this country, for Persia, was allowed to come to this country for medical help when he had some very complicated. And, and in retaliation in Iran, they, they took hostages at the—that's what triggered the hostage crisis at the at the, embassy in, in Tehran.

And so that's sort of what they envision, not somebody demonstrating in this country. And, and Rubio's statement never identifies any foreign country where there has been impact. So, that's, those are good points that he makes. But it's, it's a very hard ruling to get through and it's, we're still not very close to getting him out of jail.

Benjamin Wittes: Note to all immigration proceedings do the bail hearing first. Better for the government, better for the, the would-be deportee. There's no reason to hold people if you don't need to hold people, do the bail hearing first.

You know, Mahmoud Khalil does not pose a threat to society by any account. He's not alleged to have engaged in any violence at Columbia. He is—you know, whatever you think of his politics the guy's got a new baby at home. He's not a flight risk because, you know, if he fled, that would be what the government wants, which is for him to leave. So you're not worried about flight, at least not flight abroad. And he's not a violent person, so, let him go home and you can sort this stuff out over the, the appellate process in good sweet time. And by the way, that's a main policy recommendation for all of these cases and Congress should clarify it in these proceedings. Do the bail hearing first.

Alright. Roger, D.V.D. Bring us up to speed.

Roger Parloff: Yeah. We talked about D.V.D. two days ago, so I will only do the new developments after we, I think after we did our thing two days ago. The government is going to try to bring the—D.V.D, of course, is a class action that is about third country removals, people that are being removed.

There used to be a policy that before you get a notice of re-removal, you are removable. You came in illegally, but for some reason you can't go back to your home country, and and, and so—it can, it can either be 'cause we don't have relations with them, or it can be because you got withholding of removal for persecution or for torture, fear of torture—and, and then they, you, they can remove you to a third country. But until this administration, they would give you notice, they would say, okay, we're gonna remove you to this country. And, and you would have an opportunity to say, I feel I fear persecution or torture there too.

So, they, four people brought this. One of them was named O.C.G. and his case was the most egregious, and he was, in fact you know, he got a withholding of removal to Guatemala. They decided, okay, they swoop in, we're gonna start removing people without notice. They've, they put him in Mexico, which is a place where he has been gangraped before and, and did not wanna go. And then Mexico has nothing to do with him other than to keep him in a, a, a detention cell indefinitely. And so they give him the option of going back to Guatemala, which is where he didn't want to go either. So he goes and is in hiding.

Now they are going to, a, following Judge Brian Murphy's order they are going to, they, they seem to be in the process of bringing him back and that may surprise people, but I think what they're doing is they're trying to clean up the record, because they've now made an application to the Supreme Court and they don't want people to be discussion says O.C.G.'s case, which is bad in another way because when the, the government had claimed that O.C.G. told them, he had no fear of Mexico. And then when the day before the deposition, the government admitted, okay, we don't have anyone that can actually say that that he, he told somebody that he was not afraid of going to Mexico, so that, they're trying to get that out of the picture.

And otherwise, this appeal that they took to the Supreme Court of the rest of the case, which has had many aspects is I think worrisome. It's based largely on these jurisdiction stripping provisions and those are hard to predict. And the main one here is 1252 F1, which says that you can't bring class actions relating to certain provisions of the immigration law. And the, the, Judge Murphy had found that well the convention on torture is not one of those provisions that's mentioned, so that that's how he can do it. But he, it, it is true that by issuing that order, it sort of burdens removals to third countries, which is covered within those provisions, the general concept of removal to a third country.

So, there was a related case on this subject, just in 2022, Garland v. Aleman Gonzalez. And there was a 6-3 ruling against the alien that that the, the class action was barred. And there are ways to distinguish it—and the, the Court of Appeals for the First Circuit did seem to distinguish it—in denying a stay. But you know, what the Supreme Court will do is another question.

There are also a couple other jurisdiction stripping provisions brought up, which I won't go into detail on, but they are more common and, and if, if those were to be accepted, they would have, that would have giant ripple effects that would, you know. Those are involved in almost all these other cases we're talking about Ozturk, Khalil and so on. So, it's a, it's a, it is a concerning case.

Benjamin Wittes: Yeah. Watch this space because there are several justices on the Supreme Court who are very jealous of Congress's authority to strip the courts of their jurisdiction. This was a, a significant point of contention between the liberals and moderate conservatives in the Guantanamo cases, and the harder line conservatives both in 2004 and in 2006 or 2008. And so, you know, these are these are longstanding rifts at the Supreme Court that have nothing to do with Donald Trump, but they could, they could come back in a, in a big way that would affect a lot of these cases.

With all of which brings us to frog embryos, which is, I what I know you guys were waiting for an update on. Kseniia Petrova is free.

Roger Parloff: Yeah,  well, she won she won her bail hearing, but no, she's so, as far as immigration law, she would be free, but she's still in, on without bail for the moment in the, criminal case. So, she's being transferred from–

Benjamin Wittes: So she’s been, been, she, she's been freed. It's like a real out of the frying pan into the fire. Congratulations. You're free from immigration detention. Now you're in criminal detention for the same frog embryos.

Roger Parloff: Yeah. And Judge Rice in Vermont has not, I don't know if she plans to write on her bail decision, but if she does, she hasn't yet, so I don't really have much information there.

Benjamin Wittes: Alright, Anna Bower, who is the administrator of DOGE?

Anna Bower: Well, you know, Ben, we still don't know, Ben. We lost one of our—well, we purportedly lost one of our suspects to today this week, who says that he is leaving DOGE. Elon Musk announced on Twitter that his time as a special government employee is coming to an end, and then earlier today we had a press conference between Donald Trump and Elon Musk in which, you know, Elon Musk was presented with a key or some kind of ceremonial key of some sorts. He was thanked for his work helping lead DOGE, and he–

Benjamin Wittes: Which he was just an advisor who had no authority, right?

Anna Bower: About which he was just an advisor who had no authority. And, and and the solicitor general represented to the Supreme Court just a week or two ago that he is not a part of, and, and then today he is thanked for his help leading DOGE. Trump said DOGE is his baby, he talked about the work that they've done with DOGE saving, you know, hundreds of billions of dollars, and he wore a shirt that said the DOGE-father to this press conference.

Confusingly too, Ben, even though he is allegedly leaving his role as a White House advisor, the vice president said last night that he will continue advising on DOGE and then also today he said that he'll continue to advise on DOGE.

So it's all very not surprising, but continues to be this mystery in which the formal position of the government in court is that he's just an advisor, he's not part of DOGE, and now that he's leaving government, and then unofficially the public statements are that he helped lead do, or that he led DOGE and that he's actually still gonna continue advising.

So that is the kind of factual kind of WITAOD update for the week. But in terms of the legal cases, what you need to know in the past week—I, I don't know if, if we got around to discussing this on the stay from the Supreme Court but if, if folks recall, the case that I just mentioned before, the Supreme Court right now that relates to this question of who is the administrator of DOGE, is the CREW FOIA case. That is a case that CREW brought in which they are arguing that DOGE is subject to FOIA, it's an agency under FOIA, and, and a part of that question is this question of you know, is it does it wield significant independent authority? Or as the government argues, is it just an advisory body within the executive office of the president?

Within that case, before Judge Cooper in D.C., Judge Cooper initially ruled, gave a preliminary ruling finding that DOGE is likely an agency that is subject to FOIA. The government sought a summary judgment motion and in response CREW then requested expedited discovery, and Judge Cooper granted it. That would include a deposition of Amy Gleason, who the government says, you know, formally is the administrator of DOGE.

After that was granted by Judge Cooper it then went up to the D.C. Circuit. The government argued that this is a separation of powers problem, you know, it'll intrude on the functions of the president and his advisors, and then the, the DC Circuit said, sorry, no, you didn't even raise this objection when, when you were litigating this issue before Judge Cooper.

And so then now we're before the Supreme Court. I believe when you guys spoke last week, even though I wasn't here I think James talked about it a little bit, but the update now is that the Supreme Court entered an administrative stay on Judge Cooper's discovery order. That is, you know, a routine temporary stay. So the court can now consider the brief, the briefing on the issue. I, I believe the briefing, the reply the response and then now the reply has have all been briefed. So we're waiting to hear from the Supreme Court on this and see what they'll do.

But there's another big WITAOD update as well, which is a motion to dismiss ruling from Judge Chutkan that is in the state of New Mexico case that was brought by several states in which they allege, among other things an Appointments Clause violation by Elon Musk, claiming that he wasn't properly appointed to lead DOGE in, in compliance with the Appointments Clause of the United States Constitution because—again relates to the WITAOD question because they are claiming he is the de facto leader of DOGE, and that as the de facto leader, he wield significant and continuing authority that makes him an officer of the United States. And as such, he would need to you know, be confirmed by the Senate which he has not been.

And Judge Chutkan this week ruled that the, the litigation in that case can proceed. She found that the states have sufficiently pleaded their, their case as to the Appointments Clause violation against Musk. Keep in mind for folks who don't you know, know the kind of procedural, nitty gritty of, of a motion to dismiss at that, at that stage, she's not ruling on any factual disputes, she's not making any findings of facts.

The, generally a judge at a motion to dismiss stage has to just accept the facts as alleged in the complaint, but what she's doing is, is at least making a kind of preliminary ruling on whether or not if the facts in the complaint are true, is there is there something to this idea that there's an Appointments Clause violation? And she said, yes, you know, if Musk really is the leader of DOGE then he, he would be someone who has significant authority, significant and continuing authority as an officer of the United States.

She also addressed this ratification question which I've mentioned before, something that may eventually be an issue in terms of relief for some of these appointments, clause cases 'cause the government has argued that all of these actions that were allegedly taken by DOGE were actually approved or ratified by officers or people within specific agencies who actually do have constitutional authority to make these decisions.

And she basically said, you know, I don't really have to address this at this time because I have to accept the facts as they're put forward in the complaint, and the plaintiffs here have said that, you know, that these things, you know, weren't, or there's no record to prove that these things were approved by constitutionally authorized appointees, but, you know, putting that aside too there's this allegation that some of these actions might have been approved under intimidation or threats, and that's not something that courts have, have really looked at. So that's kind of how she addressed this ratification problem.

But that is where we are now. In that case, Ben, there is still a motion to dismiss. That is, it's been consolidated with a different complaint by that was filed by the Japanese American Citizens League and other advocacy groups, and because that was, that case was consolidated kind of significantly after the State of New Mexico case already was before Judge Chutkan that there's still a cycle of briefing going on for the Japanese American Citizens League, so, so we're waiting for a ruling on that as well. And, and that's where we are in that case.

So, some, some were toad happenings in court and, and we'll see, but I think the big thing is right now we're waiting to see what the Supreme Court does.

Benjamin Wittes: All right. But the big thing, the big WITAOD news of the week involved your piece on Lawfare and specifically your outing yourself as a faintly mentally ill cult leader who has tens of followers.

Anna Bower: Yeah, tens. There are literally tens of us. Yes, I have a piece out, it's called “The WITAOD Chronicles.” It is a piece that has been in the works, as everyone at Lawfare knows, for quite literally months. It, it took a very long time to write. It’s–

Benjamin Wittes: Probably more weeks than followers, in fact.

Anna Bower: Yeah. More, more weeks than followers for sure. It, it is maybe the most unhinged piece that Lawfare has ever published. Katherine Pompilio mentioned that it might be the first time that a Lawfare piece has ever used the term yid, which but I, it is a, it's a funny piece. I, I think, I hope.

There are some, niche legal jokes in there too, for people who like niche lawyer jokes, but also it's a piece that explains most importantly why it is that this matters. I think that a lot of people have been confused about why I've been so focused on this. So if you've been confused and, and you wanna know more about why this matters and how it relates not just to the Appointments Clause cases, but the FOIA cases to some of the APA cases, there's a, a FACA case as well that it relates to, but please do check it out. And I know that we likely will do a podcast on it, so watch for that as well. But it took a long time and I hope that people enjoy it.

Benjamin Wittes: All right, it's time for our weekly game show segment. Let's wreck a federal agency. Our contestant this week is Scott Anderson because James is who's our usual regular contestant in let's mess up a federal agency is out today. But Scott, should we destroy VOA and USAGM today?

Scott R. Anderson: Well, there have been a few developments in a couple of different fronts, but on that particular front even though it's gotten very little attention, I think there's actually a, a, an interesting development the last few days that suggests the agency may not be as close to destruction as people thought it was at the beginning of the week.

To understand what I'm talking about requires a little bit of context. So I hope you'll bear with me as I explained this a little bit. Because the actual outcome in this case, what the D.C. Circuit has ruled is weirdly split across a number of different opinions that are self-referential and refer back to different dockets and different opinions, so, piecing it all together is actually surprisingly complicated, but the long and short of it is, of course, U.S. Agency for Global Media has been shutting down the Voice of America and a number of other associated groups like the Middle East Broadcasting Network, like Radio Free, Europe, like, Radio Asia—I can't actually remember the exact, the name of the, the Asia Radio Station.

All these programs combine a lot of legal concerns. There is concerns that they are and has triggered a lot of legal challenges. They're unlawfully firing people, unlawfully canceling grants and contracts, and then unlawfully taking actions to reduce these agencies and U.S. Agency for Global Media generally below their statutory function, so limiting it to, to do things less than what Congress said they have to do.

A district court had essentially ruled in favor of the plaintiffs for all these agencies, essentially issued it slightly different case to case, found a whole relief on all three of those fronts in that sort of order. Prong one was you have to restore all your employees. Prong two was you need to start restore your grants and contracts. And prong three was you need to stop maintain current function so you don't go below your statutory minimum, at least as a preliminary injunction.

That was then appealed to the D.C. Circuit; a two-judge panel there essentially said, hey you guys we're gonna re put a stay on that preliminary injunction. It goes too far. We think that the contract claim should go through the Tucker Act to the Court of Federal Claims. We think the employment claim should go to the Merit Service Protection Bureau. And the statutory probably actually wasn't appealed 'cause the government said we are doing the statutory minimum, their vision of the statutory minimum is just very small.

About a week ago, we got what a lot of people thought was pretty bad news, which is—I should say the plaintiffs then appealed to the en banc D.C. Circuit. About a week ago, the en banc D.C. Circuit came back and said, we are actually not going to, except on go en banc on the first prong regarding employment. So people understood at the time, or or supposed at the time, that means that any sort of employment claims are gonna have to go to the MSPB. The D.C. Circuit en banc actually believes in that, not just the fairly conservative motions panel that had initially considered the matter.

And for a lot of people, that seems like the deathknell not just for VOA employees, at least in the near term, but also potentially for all sorts of other federal employees who claimed were gonna go through the D.C. Circuit  'cause the en banc D.C. Circuit didn't think there were limits there, that everything had to go through the MSPB process. That was just a bad sign about where courts were generally, the D.C. Circuit relatively friendly territory, even among appellate courts for these sorts of claims.

But we got a clarification just two days ago on the 28th that really brought this into focus, what the court was doing, which is really kind of unorthodox.

What they said essentially is A, the en banc is granting en banc review of prong two. That's the funding question. So that confirmed that they actually don't buy into the Tucker Act decisions, and they clarified that—they don't actually say that, but they referred back to a dissent by Judge Pillard who has been I think an intellectual leader on this across a number of cases where she's been, the panel on, has written a number of influential opinions that appear to be persuading a lot of her fellow judges on the court.

And then they said, you, as we said previously, we are not granting en banc review of prong one. That means that the panel's view that those claims cannot be brought through the, that, that aren't, that staying the motion restoring those people's jobs is removed.

But they came back in a very important clarifying statement. That doesn't mean that all their firings are necessarily legal, that they have carte blanche to start removing people. They still have to abide by prong three, which they did not, the government did not challenge, meaning they actually have to maintain the number of people necessary to meet the statutory minimum functions of the agency.

And they're very clear, and Judge Pillard is particularly clear in a concurrence that the district court judge, Judge Lamberth in this case, has full discretion to determine what that means in evaluating, are you complying with the statute? And if they terminate people further than they can actually reconcile and justify as being consistent with their statutory functions, that would be in violation of the PI and the, the court would see that as an acceptable preliminary injunction, something that they actually have to abide by.

If that posture sounds really familiar, that's because that's where the CFPB case, NTEU v. Vought, ended up after a panel decision with Judge Pillard and Judge Katsas, Judge Rao dissenting a couple of weeks ago, and we've seen this back and forth. What happened there? Well, CFPB came in and tried to fire everyone again anyway, and then that became a subject of a huge amount of investigation by the district court as they tried to determine is this actually even legit? Can you actually say this is consistent with your statutory functions? That eventually, ultimately led to such an embarrassing amount of discovery that the D.C. Circuit panel restored the original preliminary injunction. That's now an appeal to the D.C. Circuit.

I think we may end up seeing the same thing here in VOA if the administration pushes forward with its reported plans to fire almost everyone, because now the district court has a clear license to say, you need to make sure that this is actually complies to the statutory minimum, and that entails investigations like we saw Amy Berman Jackson doing that other case, asking for testimony about who have you talked to to determine you actually need or don't need these people to meet these statutory minimums.

It could be a big deal, but perhaps most importantly, this really shows where the en banc D.C. Circuit—a body that we don't get much clear view in as a whole, but is ultimately the, the last decider before you get to the Supreme Court on this stuff—how they're viewing what probably applies to all these agency decisions. And that means that if the Tucker Act isn't a restriction, we're gonna look at funding decisions, at least in cases where there is a statutory hook or requirement to do the spending.

They do seem to acknowledge that under California v. Department of Education, that Supreme Court case that there might be a carve out if it's a purely discretionary grant, but I don't think that's that surprising to anyone. But they kick out the, they reject the Tucker Act argument. They accept part of the MSPB argument, but with the caveat that if you actually need these people to do your statutory minimums, then we can review that, and the MSPB isn't the only vehicle for doing that.

That's actually a really huge deal for most of these agency dismantling cases, and if that's the framework that D.C. Circuit applies, that is very competitive terrain for people challenging the Trump administration's actions. Could still get disrupted by the Supreme Court, but until the Supreme Court intervenes, that seems to be at least how all these actions in the D.C. Circuit, probably the most influential circuit court on this issue set is gonna be approaching this stuff, and that's really notable.

Benjamin Wittes: So, question: the D.C. Circuit kind of famously disfavors en banc review–

Scott R. Anderson: Not really.

Benjamin Wittes: Although maybe a little bit less, less so than it used to. Does the view of the en banc D.C. Circuit here really matter, or is it a kind of theoretical matters, but since this court almost never sits en banc it doesn't actually matter that much in practice.

Scott R. Anderson: Well, really only the the en banc court knows that. 'cause they get to decide whether they sit en banc, right. I will say they have not been shy about this lately in this particular matter. They came in and issued an administrative stay of the panel opinion, I think in less than 24 hours.

That, I thought was pretty extraordinary precisely because usually they're very, very reticent about doing that, and it's a clear sign of just the ideological divide between the panels that have been hearing these cases. Remember, we're three months into three motions, panel of two to one Republican-Democrat appointee. Doesn't matter in a bunch of cases, but it does seem to be pretty significant or a pretty good indicator of a lot of these, government deconstruction, Tucker Act, MSPB channeling cases, which is what this is all coming down to.

Those panels really are not representative of the broader court. The broader court is almost two to one Democrat to Republican appointee. So if you're seeing this big ideological divide—and I should say the panels have not been shy about really going over the dissents of Democratic appointees, which we've seen. The Katsas-Pillard alignment was, I think actually the only time we've really seen a kind of a cross partisan, cross ideological outcome in one of these cases. And because of that in the, I should say the government case, it's different in the habeas context and other contexts that we've seen panels active in.

Because of that, I, I think there's just a genuine divide and I'm not sure the en banc bond court is gonna let sit back and let a panel that really disagrees with maintain these views. The question is, are those panels gonna moderate their views 'cause they know how the en banc feels about it, or is the en banc gonna have to actually convene itself to review them regularly, and is it willing to do that? We don't know, but they're certainly much more willing to do it than they have been in the past and other matters.

Benjamin Wittes: Yeah. And one factor in that is that the generation of judges who really established the disfavor, the en banc rule, are most en banc review are mostly gone. Stephen Williams, who's was responsible in I wanna say like 83 or 84 for voting with the liberal judges to dismiss a whole bunch of en bancs and wrote this opinion that basically said, I'm not gonna, this is getting too contentious, we shouldn't be doing en banc merely because we disagree with a panel.

And that was a really influential idea among a certain generation of judges, which included Merrick Garland and David Tatel, neither of whom is on the court anymore. And so I think there's a, there's a, a, a kind of generational shift. Larry Silberman is, is passed away, Stephen Williams has passed away, and so you have this generation of, of judges who really crafted a kind of cross ideological peace on the D.C. Circuit, which, who just aren't there anymore, right? And so now you have younger judges who are, feel very differently about some of these issues, and there are more of them who are appointed by Democrats than by Republicans, and so the en banc court is a little bit more active than it was before.

Scott R. Anderson: You might be right. I, I'll, I'll say one judge who does seem trying to maintain it is Chief Judge Srinivasan. He's the one who authored this kind of saving provision about this first paragraph in the MSPB employment cases.

Look, it's a weird thing to do, because this statement came six days after the actual denial of en banc and really changes what that means in practice, and you know that because the administration was doing plans that clearly seem a lot less tenable now, at least according to reports. And I know a lot of federal employees were very disappointed and discouraged by that opinion, and those who have been paying enough attention to understand what this opinion means, feel more encouraged.

So I'm not sure whose great idea to sequence it this way, but he's clearly trying to frame as a denial of en banc, avoiding en banc, something that is actually kind of on bon review 'cause he is very clearly coloring how the district court should be approaching this as if he had issued a substantive opinion. And that's, it's an awkward move, but I think it's an effort to preserve that norm to some extent.

Benjamin Wittes: Yeah, it's an interesting thing. I, I mean, look, and maybe that is a norm that can't survive in highly, highly polarized times when you have a, you know, an aggressively lawless administration.

You know, if you're arguing in the space between Bill Clinton and George W. Bush in the administrative law space, it's fine to say, you know, okay, we, you have the majority on this one, we're not gonna overrule you en banc; next time we'll have the majority, and you're not gonna overrule us en banc because the stakes are relatively low.

But then you get a guy who's, you know, really running roughshod over all of these very basic rule of law principles, and if you have the votes to overturn a decision that you think unduly defers to him, why are you gonna forgo that out of comity to your colleagues, right, and out of a sense that that's not really the way you want the court to work. You know, I'm super sympathetic to what Harry Edwards and Steven Williams and Larry Silberman did in the nineties, but it's hard to imagine the D.C. Circuit working like that today.

Alright. All right. What other federal agencies are we ripping apart, Scott?

Scott R. Anderson: There are lots happening on lots of different fronts. I think there are three developments worth flagging that I pulled out from the last week. And actually a few of these are a little prior to that, but we haven't gotten addressed them in recent sessions just because I've been out, and we were running low on time during the prior sessions.

Most recently we know, of course, we see the Office of the Copyright, Copyright Office in the Library of Congress. This is Perlmutter—forget her first name, I think it's Shira Perlmutter—who's challenged her removal by the president, was denied a TRO this week, although it's very clearly on the grounds according to the judge—which he didn't even issue opinion, he just said this from the bench—I'm doing this because we're gonna move quickly on this case and resolve it and we can restore you through back pay and reinstatement. It’s not clear that being outta work, outta the office for two weeks, three weeks which is gonna take us to resolve this is gonna compromise the work of the office.

So I don't think it's a clear indicator of the merits although Judge Timothy Kelly is a Trump appointee, so he may have a certain perspective on this. That is a case that's gonna go forward and also I think has, I could be reading around, but I think has implications for the Library of Congress itself 'cause they're actually challenging, not just removal of at the copyright office, but those with the removal, the right of the person, Blanche, who is the defendant in that case, who is acting as the acting Library of Congress to remove her. So in a way it implicates his authority as well. But I, but I'm not a hundred percent sure that it forces that, I think it might.

Two other developments of note we saw just at the end of last week: preliminary injunction out of a Northern District of California enjoining 19 different agencies from their ability to RIFs rifts and major reorganizations. This is from Judge Illston in the Northern District of California. Now appealed to the ninth Circuit, but a major action that's holding up a lot of RIFs and removal of federal employees. Only forward looking; she stayed the relief she provided to people back, that's backwards looking because she said it would be just too administratively complicated. But moving forward, it does limit the ability to do these sorts of rifts and removals.

And then finally in AIDS Vaccine Advocacy Coalition, a case that was really central to the funding question and funding cases early on, was the first one to go all the way to Supreme Court in the emergency docket and back. They had, parties there had requested, particularly the government a indicative ruling, basically narrowing relief on the basis of the same California v. Department of Education Supreme Court case that I mentioned earlier, basically saying non parties shouldn't be able to get relief under that case.

The district court rejected that, again, say non parties are entitled and are, and can be given relief in spite of that and distinguished yet. So that means that recipients of foreign assistance, at least for work completed, should be still receiving payout under that sort of judgment from USAID and from the State Department. Different resolution for work that had not been completed yet—they have to pursue individual challenges for those grants and contracts, but it resolved that sort of line of remedy that once was a, one of the main things we talked about. Case has been a little quiet recently, but I thought it was an update worth flagging.

Benjamin Wittes: Excellent. Thank you. We have one more case to cover and then we are going to go through audience questions. The estimable university, Harvardiana Universitas—they had their commencement yesterday, so we should talk about them in Latin—which has changed, its official slogan from Veritas to a hedge fund with a campus, was in court yesterday over the fate of its international students, and Greek chorus member John Hawkinson was there. John, what happened yesterday?

John Hawkinson: Was it really yesterday? I honestly, I thought it was Wednesday. It is such a week.

So, the hearing was set for 10:30 in the morning and at 7:51 in the morning or so the government filed without any explanation, a notice of intent to withdraw Harvard from the Student Exchange Program, and that's the, the procedurally proper notice that the government is supposed to file to initiate the process of a university no longer accepting international students. It's the thing they didn't do before, and apparently they decided to do it.

And so, at the beginning of the hearing, first up Judge Burroughs asked the government, you know, what does this mean? Do you think this moots the case? And of course the government was evasive. They said, well, we think that we should probably do what Harvard thinks we ought to do, which is a, a strange way to phrase it, but–

Benjamin Wittes: Not something, you, not, something you usually hear in an from an adverse party in a litigation.

John Hawkinson: Right. But we reserve the right to do other things maybe, if we, if we can come up with some other reason why we might be able to do them. And Judge Burroughs, of course, inquired well, what does that mean, and again an evasive non-answer, with the result that she's gonna keep her TRO in place from last Friday, and she would like the government if they're going to do any of these other mechanisms to punish Harvard in the same way, to come to her first, and the parties have been asked to propose a modified preliminary injunction on the basis of the new facts.

Harvard maintains of course, that all the retaliatory animus is still present and that they're continuing to suffer every day, and students are looking to transfer and people are afraid to, to be there, and the whole community is in fear.

And so, that is, kind of the long and short of it. It was not a long hearing because there was no real argument. So I, I think it was about half an hour.

Benjamin Wittes: And was the, did the subject come up that the other way the government can effectuate this, deny Harvard all its international students, is simply to revoke the visas of the international students in question and that the government seems to be at least reviewing a bunch of those visas?

John Hawkinson:I would say it did not really come up. There, there was mention of, of fear of visa revocation, but it, it was not discussed meaningfully.

Benjamin Wittes: Roger, do you have thoughts on, on, on this case?

Roger Parloff: Well in that as John says, this this new revocation—which they obviously got a lawyer involved in this time, it, it, it sort of goes, it gives the 30 days notice that you're required to give—it's setting it up to, to try to deny them of an appeal, which on, on sort of, that on grounds that don't, aren't gonna fly.

But there is more fleshing out of what their claims are, and, you know, they've, they've now got three different sort of claims. I don't know if they—some of these sounded new to me. The first was we knew about, which was the failure to keep records about things that they aren't ordinarily required to keep records about, which are criminal and disruptive, violent acts by the, by students. And then there's something called there's, there's a lot of other accusations I hadn't heard including that Harvard has coordinated with the Chinese Communist Party, it's received 151 million dollars from foreign governments.

Benjamin Wittes: It's not called the Kremlin on the Charles for nothing.

Roger Parloff: Yeah. So, the, there, there's sort of worrisome, some more worrisome stuff in there. But anyway, it's, it's, it's sort of more of the same.

Benjamin Wittes: Alright. Andrew, you have two questions in the queue.

Let's start with question number one.

Andrew Steele: Yes. Thanks for letting me on and thanks for your coverage, everyone, including Mr. Hawkinson.

This is sort of going back a little bit to something we discussed earlier, but I was wondering whether you thought that Judge Stephanie Haynes’ determination on the cases A.S.R. v. Trump. This was an opinion from about a week ago that the administration's allegation that Tren de Aragua was covertly controlled or clandestinely controlled by the Maduro government was plausible. Is this the only district court opinion that's determined that the AEA was invoked?

I'm just wondering if this is setting up a circuit split because some other courts have said no, obviously there isn't an invasion or incursion, so just wondering if you're seeing this or other cases as you know, determinations that the AEA was properly invoked.

Benjamin Wittes: Roger, do you wanna get us started on that?

Roger Parloff: Yeah. She's the only one who has upheld the AEA. She did it on very unusual grounds. The, the part you're talking about, about whether the, whether there's a state or foreign government involved—that that part of it is she's actually in agreement with the Southern District of Texas judge, Fernando Rodriguez, maybe who agreed with that part but but then struck it down on, on the, on another part.

What they're both doing really is they both take the position that you can't quarrel with the truth of what's in the proclamation. It's sort of what you can do is you can say, okay, assuming the truth of the statements in the proclamation, Trump's proclamation, does that make out an AEA claim? And what Judge Rodriguez found—it's sort of like, you know, a motion to dismiss you is you can't quarrel with the, for that purpose, you can't quarrel with the allegations in the complaint, but does it make out a claim? And, and, and so, Judge Rodriguez found even assuming the proclamation, you haven't made out an incursion or a predatory, I mean a invasion or a predatory incursion.

And then Judge Haynes found well, I agree with you, you haven't made out an invasion and you wouldn't have made out a predatory incursion if it only involved migration by a criminal gang, but what makes it different is that, is that Rubio designated this gang a foreign terrorist organization in February. And that changes everything, and, and that gives you the cohesion and the, and the sort of, national security danger to, to say that this is a predatory incursion within the meaning of the AEA. So that's her ruling.

Benjamin Wittes: Can I ask for a clarification of that, Roger? Because. The designation as a foreign terrorist organization is a, you know, FTO designation under the material support criminal statute. That doesn't really have anything to do with the AEA. Why is that probative? You know, if, if, if, if I declare that, that, you know, I may have the authority to declare that Scott has red hair, but what does that have to do with the AEA?

Roger Parloff: Well, I have not put that question to Judge Haynes.

Benjamin Wittes: All right.

Roger Parloff: Good question.

Benjamin Wittes: Andrew, let's go to your second question. I just wanna point out that nobody's even raised their eyebrows at the idea that some statute may be, may be giving me the authority to declare whether Scott has red hair or not.

Andrew Steele: I think Scott has gray hair. I'm sorry, Scott has red hair, Roger has gray hair.

Scott R. Anderson: I have some gray hair too. It’s okay. I've come to terms with it. As long as I have some hair, I'm happy.

Andrew Steele: You have to use the keep it golden conditioner and shampoo. I, I think my question has largely been answered and it relates to the, the Harvard v. DHS case. And it was the question about the notice of intent to withdraw that was filed by Pam Bondi and whether that sort of overwrote or, or superseded constitutional scholar Noem’s letter from May 22 that revoked the SEVP program.

Roger Parloff: It, it, it was, it was weird 'cause it just ignored the fact—unless you remember it differently, John—but it just ignored the fact that the May 22 thing had ever occurred, that the, they had already revoked that they had already decertified. It just said that it, they just suddenly began to go through it as if they were gonna do it in a, in a legal fashion.

Andrew Steele: Yeah, I think that's fair. I mean, the other thing to note is—and I hadn't thought too hard about this before—I, I wouldn't say the DOJ attorney had a coherent explanation for why it was filed and why he was there. And you know, that's, that's not really surprising in light of how we see DOJ representing their clients lately, so maybe it's no surprise at all. But nonetheless, it was present.

Benjamin Wittes: Alright. Catherine Watkins, the floor is yours. You gotta unmute yourself.

Well we can't hear Catherine, so I will read her question for her. Regarding third country removals, is there any requirement for the United States to impose on the third country for handling their non-citizen deportees? Or is it as long as a third country agrees to accept, then the third country can do whatever it wants to the deportees?

Okay, this is an easy one. It is not that the third country can do what it wants. There's a few rules here. One is that there is a general bar in the Convention against Torture against deporting country, deporting people or turning people over in circumstances in which they may face torture. That's called the principle of non-refoulement.

The second issue is that the detainee has to be given an opportunity to assert that he or she fears some kind of political persecution or retribution or maltreatment at the hands of this country, and that has to be you have to have a, a, a process for evaluating whether there's a reasonable fear. And that's why, for example, the judge stopped the transfers to South Sudan.

There may be other restrictions as well. Scott and Roger, do you have thoughts on that?

Roger Parloff: Yeah, there's one other—I'm sorry, Scott, am I interrupting you?

Scott R. Anderson: No, no, go ahead. I'll, I'll hop in after you.

Roger Parloff: There's one other flip here. So after the D.V.D. case was brought and after on March 28 a TRO was entered, then on March 30, the, the, the, the DHS issued a new directive to their people and said they, they were gonna take the, the, they were have a bifurcated policy.

They would try to get from a third country, a the, from the leader, the, the third country would say, okay, we agree not to torture so and so. And, and then if, if you can get that statement from the third country, then you can send the person there with no, no due process whatsoever. That's their policy right now. That had been it, and Judge Murphy forbade that as well. So that is one way. And, and there is some bad law in this area. They, you know, the government might be right on that, they could win that point. But that's what they're trying to do. If they can get that assurance from the government beforehand, we won't torture.

And it, it's only about torture and not persecution because the class action can only bar torture, not persecution because of a jurisdictional stripping provision that, you know, the, the, the provision for stopping from the, for withholding of removal for persecution is within the area that is covered by the jurisdictional stripping provision, so you can't get a class action preventing them from abusing that provision. But you can, for the Convention on Torture. I'm sorry, go ahead.

Andrew Steele: But you can also raise individual actions, right?

Roger Parloff: Right, the individual's

Andrew Steele: A way around it. And sometimes the government gets so annoyed at repeated individual actions that they may sort of acquiesce, not perhaps not to class actions in name, but to recission of the policy. Go ahead.

Scott R. Anderson: Yeah. All, all I was gonna say, this policy of assurances is a kind of a longstanding policy. It got a lot of attention right after 9/11 attacks about the rendition program and kind of efforts to later efforts to move people out of the country who are associated with terrorism and other contexts. So there, there are administrative procedures that are an effort to be made with different strength and a different seriousness under different administrations to evaluate the credibility and continue to evaluate the credibility of those assurances, but they are bureaucratic processes, so they're not immune to political interference.

My recollection, although it's been a while since I thought about it, is that there's a strong presumption of judicial deference to those determinations, but it is not absolute, much like a lot of differences in the foreign affairs space. And look, we've seen those sorts of differences really take a big hit under this administration. A lot of things that frankly, you would expect courts to defer to the executive branch more handily are getting more scrutiny now, and I suspect this is a field where we may see that as well. Doesn't mean the government's gonna lose, but it does mean I think they're gonna have to do a little bit more to justify their position potentially in some cases.

The last thing I just note is our Lawfare contributor Ashley Deeks wrote a very good report—I think it was her first thing she ever wrote out of government—for the Council on Foreign Relations back in 2008 on this, called transfer to torture, Avoiding Transfers to Torture. So if you want a good report about that in the counterterrorism context, check out Ashley's works there. It is as I recall, very good having read it 10 years ago, but I still think, I think I suspect it holds up.

Benjamin Wittes: Alright, we have one last question from the anonymous attendee related to immigration hearing dismissals to ICE waiting in the courthouse to pick them up pipeline we are seeing, and the requirement of a writ of habeas corpus when arrested. Would it be possible for a migrant attorney to ask at dismissal for a writ citing the likelihood of being arrested and deported immediately after, and as part of, as part of zealous representation of their client?

So I think you I think the answer to that is you could try, but I don't think you would succeed with that because you can't really use a, a habeas writ to prevent somebody from being taken into custody. It really is an instrument designed to get people released once they have been taken into custody.  I'm not sure I know of a preemptive habeas action in the history of American law, though who knows. Anybody have further thoughts on that question? Alright.

Scott R. Anderson: Standing would be really hard unless you were really, really confident. No matter, even if outside the habeas context, you would have to be like absolutely certain that enforcement action is gonna happen under most precedents in this case, although it's a little wonky in certain contexts.

Benjamin Wittes: All right, folks. We are at the end of a 90 minute show after a previous 60 minute show this week. The, the volume of case material keeps growing, but, you know, it is delightful to see you all hanging in there to the end, we few, we plucky few, we band of siblings, we WITAODlings.

We're gonna be back next week. I don't know—I mean, we'll be back at this time, we may be back at some other time as well because the, we're like that town that just got buried by the Swiss avalanche collapse, and the, the glacier is the volume of litigation. We're gonna be back next week.